A situation Cuomo can't control anymore

The New York Times A-1 blockbuster that Andrew Cuomo’s team was dreading finally landed on Wednesday, and it wasn’t pretty. It painted a picture of the governor’s dealings—including allegations his administration quashed an anti-corruption panel’s subpoenas to his allies—that even his supporters privately admit doesn’t look so hot.

And with a primary and general re-election campaign and an investigation by the U.S. attorney all looming, this saga has only just begun.

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The question now is: How will all this play out for the governor, in terms of both the politics and the law?

On the former, the first place to look is the governor’s response. You can always get a sense of how fearful of a breaking story a politician is by his public schedule immediately afterward.

In this case, Cuomo was slated to appear at the Bronx County Democratic dinner on Wednesday night. But, an insider tells Capital, he quietly backed out in an effort to avoid public attention. Similarly, the source says the governor—who is sitting on a massive campaign warchest and an insurmoutable-looking lead in the polls—had planned events for Thursday, but they, too, were removed before a public schedule went out. (Could we hear from Cuomo today? It would be less surprising, as he knows that comments made on a Friday end up in less-well-read Saturday editions of the paper.)

Another intriguing element of Cuomo’s reaction is the 13-page statement his team provided the Timesin response to its questions. One particularly memorable passage began like this (with emphasis added): "The Governor claimed the Commission ultimately had independent investigative authority through the Co-chairs. The Governor did not and could not mean that the Commission as an entity was legally independent from him."

It’s not every day that your own defense characterizes your public statements as mere "claims" which it then sets out to debunk immediately afterwards. But such is the spot Cuomo is in.

A key issue is whether in fact the Moreland Commission appointed by Cuomo to investigate public corruption was a mere instrument of the governor—with which he could do whatever he pleased—or an independent entity.

When the commission was announced, of course, the governor had publicly trumpeted its independence. As the Times notes, Cuomo said upon its launch that it would be "totally independent," adding in August that "anything they want to look at, they can look at—me, the lieutenant governor, the attorney general, the comptroller, any senator, any assemblyman."

But when allegations of interference by Team Cuomo first surfaced earlier this year, the governor’s characterization of the commission changed. Now his contention was that he couldn’t possibly "interfere" with any investigations because the commission was in fact not independent, but controlled by him.

"It’s not a legal question," he told the Crain’s editorial board back in April. "It’s my commission. My subpoena power, my Moreland Commission. I can appoint it, I can disband it. I appoint you, I can un-appoint you tomorrow… So, interference? It’s my commission. I can’t 'interfere' with it, because it is mine. It is controlled by me."

That was a few months ago. In the lengthy statement to the Times Wednesday, still another shift in the characterization of the commission was detectable. Not only was this no longer an independent commission, but now Team Cuomo added that the Moreland Commission couldn’t possibly investigate Cuomo’s dealings because "it would have been a major problem, " claiming that "a commission appointed by and staffed by the executive cannot investigate the executive."

To do so, Cuomo’s team added, would constitute "a pure conflict of interest and would not pass the laugh test."

If that’s true, someone better tell Mario Cuomo.

Back in 1987, a spate of ethics scandals led the first Governor Cuomo to appoint a Moreland Commission of his own, which he called the New York State Commission on Government Integrity, but later came to be known as the Feerick commission (after the Fordham law dean who chaired it). As Jerry Goldfeder and Myrna Perez noted in the New York Law Journal:

"The Feerick commission could and did subpoena witnesses; it held public hearings throughout the state; and issued 20 reports prior to its final set of recommendations. Looking to have as broad an impact as possible, the seven-person panel tackled a wide swath of issues. These included campaign finance reform; election of judges; fairer personnel practices; liberalized ballot access rules; neutral contracting procedures; protection for whistleblowers; and forfeitures of pensions."

It also did something else: "After a 40-month, comprehensive and thorough investigation, including scrutiny of campaign finance filings of Cuomo and other statewide officials, a unanimous panel concluded in 1990 that New York’s campaign finance laws were a ‘disgrace and embarrassment’ and the state had ‘not yet demonstrated a real commitment to ethical reform in government.’"

In other words, a Moreland commission appointed by Mario Cuomo investigated the executive and lived to tell the tale. But don’t just take the Law Journal’s word for it.

"The rare appearance of a Governor before a commission looking into campaign financing had all the drama of a preseason game," the Times reported back in 1989 on the commission’s investigation of Albany fund-raising practices. "One item of evidence was a document with shorthand codes for lists of potential contributors drawn up by Mr. [Mario] Cuomo's chief fund-raising assistant, Lucille Falcone."

The commission would go on to castigate the elder Cuomo’s practices, with the Albany Times Union reporting later in 1990 that "Gov. Mario M. Cuomo is still soliciting contributions of up to $25,000 and is well on his way to having a $10 million campaign kitty despite criticism of such fund-raising practices by the Cuomo-created State Commission on Government Integrity."

It appears the younger Cuomo’s story may need some tightening.

But the most obvious source of potential harm to Cuomo’s political fortunes would be legal trouble. And here’s where key bits of the story have remained particularly elusive. However hypocritical and unseemly the behavior by the governor and aide Larry Schwartz may have been, there has been no serious explanation yet about how any of it was illegal. Legal experts differ on whether federal prosecution is even a possibility.

But as I’ve previously written on this site, U.S. Attorney Preet Bharara poses potential trouble here for Team Cuomo. He’s smart, politically experienced (he was a senior Capitol Hill aide with me a decade ago), and will not be intimidated by the moment, or by the governor. If the results of his investigation into the disbanding of Moreland suggest that there’s a prosecution to be done, he’ll do it.

In one sense, it would be a stretch: The commission was a state entity, and Bharara’s job is to prosecute federal crimes. He won’t want to stretch and lose.

But while a person typically can’t be charged with federal obstruction of justice for interfering with a state entity, a determined prosecutor could make an argument that the federal rule applies here.

The federal witness-tampering statute (18 U.S. code 1512), for example, applies to "[w]hoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to … influence, delay, or prevent the testimony of any person in an official proceeding" or "cause or induce any person to—"

(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;

(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or

(D) be absent from an official proceeding to which such person has been summoned by legal process …

The "official proceeding" language here refers to a federal proceeding. But if any of the entities the Cuomo administration reportedly shielded from the Moreland commission’s questions are under investigation by or of interest to any federal office, it could theoretically provide an opening for the U.S. attorney.

That's far from a slam dunk. But the very threat of such legal action could be enough to get people at the bottom and middle of the chain to share what they know, so prosecutors can work their way up.

Bharara may have already offered clues to his intentions.

If a prosecutor is laying the groundwork for possible action, the first step would be to get all relevant Moreland Commission documents (and based on those, see what others are needed), which Bharara has done. Once all the documents are collected, the prosecutor’s office would start at the bottom of the chain, perhaps with an assistant to the commission’s executive director—which Bharara has also just done. (Regina Calcaterra’s assistant Heather Green was subpoenaed and will appear before a grand jury on Monday.)

Lower-level witnesses like Green would be asked to provide any information they might have, including communications, whether they remember any meetings between major players at specific times. The information gleaned would then be waved at players up the chain in an effort to get them to talk, and implicate bigger fish. Obvious subsequent steps would include going to Calcaterra and Schwartz, with the ultimate goal being to nail the most senior target possible.

Depending on the severity of their potential charges, ability to cooperate and relevant knowledge, they could get immunity or a potential reduced sentence to help nab a bigger player.

Of course, the prosecutor could determine there’s not enough to proceed, and, in what would be a best-case scenario for the governor, dissolve the investigation entirely. Another, middle-ground scenario would be the issuance of a grand jury report (a highly unusual occurrence) that lays out for the public an excoriation of the conduct as reprehensible but not criminal.

Whatever happens, one thing is clear: Unlike the Moreland commission’s work, the outcome of Bharara’s investigation is out of Cuomo's hands.